United States of America v. Ousmane Barry

The opinion of the court was delivered by: Judge James M. Munley United States District Court

(Judge Munley)

MEMORANDUM

Before the court are Defendant Ousmane Barry's pre-trial motions. Having been fully briefed and an evidentiary hearing held, the matters are ripe for disposition.

Background

The United States swore out a criminal complaint against Defendants Ousmane Barry and Ousmane Camara on July 9, 2009. (Doc. 1). The complaint alleges that, on or about February 28, 2009, Defendants conspired to use counterfeit access devices with the intent to defraud multiple financial institutions in violation of 18 U.S.C. § 371. Defendants made an initial appearance on July 10, 2009. (Docs. 10, 13).

On July 21, 2009, the grand jury handed down an indictment that named Defendants Barry and Camara on five counts. (Doc. 15). Count 1 alleges a conspiracy between the two Defendants to use counterfeit access devices with intent to defraud. Count 2 alleges that Defendants committed credit card fraud between September 2008 and February 2009 by using unauthorized credit cards to obtain merchandise and services valued at more than $1,000. Count 3 alleges that Defendants engaged in credit-card fraud by using unauthorized credit cards to obtain merchandise and services valued at more than $1,000 from December 2008 until February 2009. Count 4 raises the same claim with respect to cards used between September 2008 and February 2009. Defendants pled not guilty to these charges on July 30, 2010. (Docs. 20-21).

After filing numerous motions for extensions of time, Defendant Ousmane Barry (hereinafter "Defendant") eventually filed the instant pre-trial motions on January 21, 2011. The government responded. The court then held an evidentiary hearing on Defendant's motions on August 25, 2011, bringing the case to its present posture. (See Tr. of Proceedings (Doc. 86)).

Officer Craig Santoro was the sole witness at this hearing. (Id.) Santoro testified that he was an officer with the Franklin Township Police Department in Hunterdon County, New Jersey. (Id. at 3). Santoro had served twelve years in Franklin Township and seven years before that as a county sheriff. (Id.)

Santoro was on duty at 8:00 a.m. on February 28, 2009. (Id. at 4). His duties that day included responding to calls, investigations, and "whatever arose during [his] shift." (Id.) Santoro was on patrol in a marked police car. (Id.) He was wearing a full police uniform. (Id. at 5). At that time, he received a dispatch. (Id. at 4). A call came over the police radio that "loss-prevention" at the local Wal-Mart had observed individuals in the store "attempting to purchase merchandise with what the security people believed to be either stolen or fraudulent credit cards." (Id.)

Santoro was seven or eight minutes away from the store when he heard this dispatch. (Id.) "[I]mmediately," he "got on the police radio and called an officer from the next town over to see if he was in proximity of the store." (Id.) The officer Santoro called was in proximity to the store, and "[t]wo officers from the next town over arrived at the store probably four to five minutes before [he] did." (Id. at 5).

Eventually, Santoro arrived at the Wal-Mart. (Id. at 5). Patrolman Tilstra and Patrolman Cohen from the Town of Clinton were already there. (Id.) When Santoro arrived, he saw the two Town of Clinton officers, "two potential suspects" and Wal-Mart's loss prevention supervisor walking out of the store's "big automatic doors" (Id.) The group of five people walked toward Santoro. (Id.)

Santoro got out of his car and spoke with Officer Tilstra and Wanda Mercado, supervisor of loss prevention. (Id. at 6). Tilstra and Mercado explained to Santoro that the two suspects had been observed in the Wal-Mart self-checkout line attempting to purchase merchandise. (Id.) The men used "several different cards" to do so. (Id.) That activity raised Wal-Mart security personnel's suspicion. (Id.)

Santoro next spoke with the two detained men. (Id. at 6-7). He examined the merchandise they had, which included "several Nintendo games, DS games." (Id. at 7). The games were in Wal-Mart bags. (Id. at 7). Santoro asked to see the merchandise and the card used to purchase it. (Id.) The individual Santoro spoke to about the cards had opened his wallet and pulled out several cards, before eventually determining that he had used "a Visa all access card" to purchase the games. (Id.) Santoro eventually discovered that this man had "three or four" cards of the same type, "which were basically gift cards," either Visa or Mastercard. (Id. at 8).

Santoro asked for identification from these men. (Id.) One man provided a hospital card and a library card. (Id.) The other individual had no identification, though he did have the Connecticut driver's license of another person. (Id.) Santoro noticed that these two men had unusual accents, which Santoro thought was "a Jamaican type accent, and I don't know if they are Jamaican, but that type of accent." (Id. at 11-12).

Eventually, another police officer, Sergeant Derosa of the Clinton Township Police Department, arrived on the scene. (Id. at 9). Derosa called Santoro to his vehicle and asked him if he had identified the vehicle in which the two men had arrived at the Wal-Mart. (Id.) Derosa informed Santora that there were two individuals in a minivan parked about halfway through the lot. (Id. at 9-10). Derosa had arrived in the parking lot in a marked car wearing a full uniform. (Id. at 10). When the two persons in the minivan saw Derosa's car approach, they "slouched down in their seats almost like they were attempting to hide from him." (Id.) Santoro asked the two detained men how they arrived at the Wal-Mart. (Id.) In the end, the men admitted that they had arrived in the van identified by Sergeant Derosa. (Id. at 10-11). Santoro described the van as "bluish in color and it had Michigan registration plates." (Id. at 11).

Santoro and Patrolman Cohen then walked over to the minivan. (Id. at 12). The individuals in the van at first "basically ignored" them and "continued to look straight ahead." (Id.) Two men were in the car. (Id.) Santoro identified Defendant Ousmane Barry as the individual he saw sitting in the passenger seat of the van that day. (Id.)

Santoro walked around to the back of the van, "to identify all personnel in the vehicle or identify any potential hazards." (Id. at 13). The officer "look[ed] in the back window of the van just to see if there was anything in there that would be some kind of a surprise or some kind of a danger to [him]." (Id.) When he looked in the van as he was walking around, Santoro "noticed some boxes that appeared to be like laptop computers." (Id.) At the time, the officer could see "probably three or four laptop boxes." (Id.) They were stacked atop each other, and were not in shopping bags. (Id.) Santoro then moved closer to the van and looked in the back window, which was tinted. (Id.) He saw "several additional Wal-Mart bags." (Id.)

When Santoro approached the driver, he looked through the window of the sliding door behind the driver. (Id. at 13-14). He could see "additional Wal-Mart bags," perhaps three or four of them. (Id. at 14). There was "some merchandise kind of hanging outside of the bags." (Id.) There were bags on the floor and on the back seat. (Id. at 14). Santoro noticed that the bags on the back seat "kind of had fallen over," and he could observe "a couple of Nintendo DS games." (Id.) These games were "similar to the ones that the individuals who [he] had spoken to earlier had in their possession." (Id.)

Santoro then approached the driver of the car, Ousmane Camara. (Id.) He asked the driver if he knew the two individuals the police had taken into custody. (Id.) The driver did not give a "straight answer" at first, but eventually admitted to Santoro that the men were "with him." (Id.) Defendant Barry was seated next to the driver in the passenger's seat while this conversation took place. (Id. at 15).

Santoro then asked Camara about the merchandise on the back seat and the computers he had seen through the rear window. (Id.) Camara claimed that "they had purchased them." (Id.) Santoro asked if he could see the computers in the back, and Camara agreed. (Id.) Not wanting to open the car himself, Santoro asked Camara to get out of the car and open the back door. (Id.) Camara got out of the car. (Id.) As they were speaking, Santoro noticed that Camara had "the same type of accent" as the men with whom he had previously spoken. (Id.)

When Camara opened the front door of the van, Santoro, as was his practice, "[took] kind of a . . . cursory look very quickly to make sure there is nothing there [he] need[ed] to be aware of." (Id. at 16). Santoro did not see any "immediate threat or danger, but . . . did notice something very odd regarding the seatbelt housing," which he described as "[t]he plastic housing that you pull the seatbelt out of when you put your lap belt on, your seatbelt." (Id.) Santoro saw "what appeared to be additional credit cards down in the seatbelt housing." (Id.) Santoro had bent down to "look for a weapon, anything that might be of a potential danger to [him]" and "look[ed] down to see if the door had a pocket, like if [he] could see there was a gun hidden in the pocket." (Id.) As he did so, he "kind of looked under the seat and around the seat area, and [he] actually saw additional credit cards that were down in the seatbelt housing." (Id.) Santoro saw "several" cards in this area. (Id.) Santoro was suspicious upon viewing these cards because he had "never seen cards stored that way." (Id. at 20-21). Santoro testified, "I carry my cards in my wallet, and I don't have a big, ...

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